Uncle George is 82 years old and has begun to exhibit significant memory disturbances over the last six months. Concerned family members scheduled an appointment with Dr. Cranium, a local neurologist, to examine Uncle George’s deteriorating mental condition. Dr. Cranium evaluates Uncle George and his diagnosis is mild to moderate Alzheimer’s. Uncle George has not updated his testament in thirty years and has decided he wants to make some changes. In light of the diagnosis, does Uncle George have the requisite mental capacity to execute a last will and testament under Louisiana law? The answer is a definite “maybe.”

Louisiana law provides that all persons have capacity to donate by last will and testament, unless otherwise provided by law. La. Civ. Code art. 1470. There is a presumption in favor of testamentary capacity and the validity of the testament is to be upheld whenever possible. Succession of Christensen, 649 So.2d 23, 27 (La. App. 1st Cir. 1994); Succession of Miller, 803 So.2d 1021, 1024 (La. App. 2nd Cir. 2001). In determining testamentary capacity, the question is whether the testator understood generally the nature of the disposition of his will and appreciated its effect. La. Civ. Code art. 1477. In order to understand the “nature” of the disposition, the testator need only comprehend that she is making a gratuitous transfer of her property. La. Civ. Code art. 1477, comment (d). The testator need not have an accurate understanding of his assets; he needs only to understand “generally” or approximately the makeup of her property in order to execute a will. Succession of Cole, 618 So.2d 554, 556 (1993). In order to understand the “consequences” of his testament, the testator must only realize that he will no longer own the property and that it will enhance the patrimony of the donee. Id. Capacity to donate by last will and testament must exist at the time the testator executes the testament. La. Civ. Code art. 1471.

Many Louisiana cases have held that the presence of a mentally-debilitating condition is insufficient, in itself, to prove lack of capacity. This is particularly true when there is testimony and other evidence demonstrating that the testator exhibited the required capacity at the actual time the testament was executed. Succession of Cullota, 900 So.2d 137, 143 (La. App. 5th Cir. 2005). A Louisiana court has held that given the presumption in favor of capacity, the testator had capacity to make a will even though she suffered from moderate Alzheimer’s disease. In so holding, the Court relied heavily on witnesses who had contact with the testator on the day she wrote her will and who testified that she understood and appreciated the consequences of what she was doing. Succession of Cullota, supra at 143, citing Succession of Christenson, 649 So.2d 23, (La. App. 1st Cir. 1994). In another case, evidence that the testator had been released from a geriatric psychiatric ward days before she revoked her will was insufficient to establish incapacity where witnesses testified that the testator understood the nature and consequences of her actions on the day she executed the revocation. Succession of Cullota, supra at 143, citing Succession of Chauffepied, 775 So.2d 555 (La. App.3rd Cir. 2000). In another instance, hospital records showing that the testator had been diagnosed as suffering from anxiety, depression, dementia, organic brain disease, and was taking antidepressants, anti-anxiety drugs, tranquilizers, hypnotic drugs and pain medication did not overcome the presumption of testamentary capacity. Witnesses to the testament testified that the testator understood the nature and consequences of his actions on the day the will was executed. Succession of Cullota, supra at 143, citing Succession of Braud, 646 So.2d 1168 (La. App. 4th Cir. 1994).

The above cases demonstrate that Uncle George’s diagnosis does not necessarily disqualify him from making a new testament. The key determinate of capacity is whether Uncle George has an understanding of the nature and consequences of his actions on the date that he executes his testament. In Uncle George’s case, he would be best served to see an attorney who is experienced in the wills and estate planning practice area – one who has experience in evaluating elderly clients and is familiar with Louisiana’s requirements regarding mental capacity. The attorney will often ask the testator a series of questions to evaluate capacity prior to executing the testament. The attorney may also decide to make an audio or video recording of the execution of the testament to preserve the testator’s own words as to his understanding of the nature and consequences of his actions and his desires to execute a last will and testament. Such evidence may prove invaluable in establishing Uncle George’s capacity if the testament is later challenged by disappointed or omitted heirs or legatees.

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